State v. Johnson, 225 N.C. App. 440 (Feb. 5, 2013)

In a drug case the court held that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear conducted after a vehicle stop and that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer placed the defendant on the side of his vehicle with the vehicle between the defendant and the travelled portion of the highway. Other troopers stood around the defendant to prevent passers-by from seeing him. The officer pulled out the front waistband of the defendant’s pants and looked inside. The defendant was wearing two pairs of underwear—an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear the officer found a cellophane package containing several smaller packages. There was probable cause to search where the defendant smelled of marijuana, officers found a scale of the type used to measure drugs in his car, a drug dog alerted in his car, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. Because narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant was in possession of them, sufficient exigent circumstances justified the warrantless search. Additionally, the search was conducted in a reasonable manner. Although the officer did not see the defendant’s private parts, the level of the defendant’s exposure is relevant to the analysis of whether the search was reasonable. The court reasoned that the officer had a sufficient basis to believe that contraband was in the defendant’s underwear, including that although the defendant smelled of marijuana a search of his outer clothing found nothing, the defendant turned away from the officer when the officer frisked his groin and thigh area, and that the officer felt a blunt object in the defendant’s crotch area during the pat-down. Finally, the court concluded that when conducting the search the officer took reasonable steps to protect defendant’s privacy.